Mitchell Hamline Law Review Volume 42 | Issue 1 Article 8 2016 Copyrighting Tattoos: Artist vs. Client in the Battle of the (Waiver) Forms Brayndi L. Grassi Follow this and additional works at: http://open.mitchellhamline.edu/mhlr Part of the Intellectual Property Law Commons Recommended Citation Grassi, Brayndi L. (2016) "Copyrighting Tattoos: Artist vs. Client in the Battle of the (Waiver) Forms," Mitchell Hamline Law Review: Vol. 42: Iss. 1, Article 8. Available at: http://open.mitchellhamline.edu/mhlr/vol42/iss1/8 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in Mitchell Hamline Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Grassi: Copyrighting Tattoos: Artist vs. Client in the Battle of the (Wai 2 (Do Not Delete) 3/24/2016 7:52 PM COPYRIGHTING TATTOOS: ARTIST VS. CLIENT IN THE BATTLE OF THE (WAIVER) FORMS* Brayndi L. Grassi† I. INTRODUCTION ........................................................................ 44 II. BRIEF HISTORY OF COPYRIGHT LAW IN NEW MEDIUMS ........... 46 III. FIRST INSTANCE OF COPYRIGHTS IN TATTOOS: REED V. NIKE, INC. ................................................................................. 47 IV. ARE TATTOOS COPYRIGHTABLE? ............................................. 48 A. Tattoos Meet All of the Requirements of the Copyright Act ...... 49 1. Originality .................................................................... 49 2. Authorship .................................................................... 50 3. Fixation ........................................................................ 52 4. Tangible Medium .......................................................... 53 B. Tattoos Are Works Made for Hire ......................................... 53 C. The Tattoo Artist Would Own a Piece of Your Body .............. 55 V. TATTOOING CELEBRITIES AND COPYING INFAMOUS TATTOOS .................................................................................. 57 A. Whitmill v. Warner Brothers Entertainment Inc. .......... 57 B. Escobedo v. THQ, Inc. .................................................... 59 VI. WHERE DO WE GO FROM HERE? BATTLE OF THE (WAIVER) FORMS ..................................................................... 65 A. Preemptive Measures for Human Canvases .......................... 65 B. What Should Be in the Tattoo Artist’s Waiver? ..................... 66 VII. CONCLUSION ........................................................................... 69 * An earlier version of this article first appeared in an online post made by the author. See Brayndi Grassi, Copyright in Tattoos, Artist vs. Canvas, INFRINGE THAT! CURRENT ISSUES MEDIA & ENT. L. (Dec. 20, 2013), http://www.infringethat.com /2013/12/20/copyright-in-tattoos-artist-vs-canvas. The article has since undergone significant research, revision, and substantive additions. † B.A., New York University, 2011 and J.D., New York Law School, 2015. She was recently admitted to the New Jersey and New York Bars. She works for Terri Baker, a solo practitioner entertainment attorney in New York specializing in music law and representing a wide range of musicians. She is also the proud wearer of three tattoos. 43 Published by Mitchell Hamline Open Access, 2016 1 Mitchell Hamline Law Review, Vol. 42, Iss. 1 [2016], Art. 8 2 (Do Not Delete) 3/24/2016 7:52 PM 44 MITCHELL HAMLINE LAW REVIEW [Vol. 42:43 I. INTRODUCTION A few decades ago, a tattoo was something you got in one of three places: in jail, in the Navy, or as part of your initiation into a motorcycle gang.1 Today, tattoos are something you get as a form of self-expression, on your eighteenth birthday, on a drunken whim, or on a reality television show hosted by Dave Navarro.2 Tattoo culture has gone from being taboo to trendy and now everyone, and some people’s mother, has one.3 Normally, the process of getting a tattoo is straightforward. You do some research and choose a shop near you that adheres to the basic standards of cleanliness. Then you either walk in or make an appointment with a tattoo artist to go over what you want and where, and you either sit for the tattoo right then and there, or you make an appointment to come back. If you are not a creative sort of person you can also choose a pre-drawn design from a “flash” book filled with well-known images the artist has done countless times before.4 However, before the artist will put a drop of ink into your skin you have to sign a waiver, which usually includes a fair amount of legal jargon most people cannot understand. The waiver says that the human canvas understands the risks involved in getting a tattoo, the tattoo is permanent, and the human canvas releases the artist and their shop from liability for any side effects or complications arising from the tattoo.5 In the near future, these waivers could include additional provisions that state the artist retains the right to the copyright in the design of the tattoo. These changes, if implemented, will likely be the result of a recent increase in the exposure of the interaction between copyright law and tattoos, which started in the early 2000s and has been gaining exposure steadily since.6 While there is no 1. See Aaron Perzanowski, Tattoos & IP Norms, 98 MINN. L. REV. 511, 512 (2013). 2. Ink Master, SPIKE, http://www.spike.com/shows/ink-master (last visited Feb. 8, 2016). 3. Perzanowski, supra note 1, at 512. 4. See What Are Tattoo Flash?, WISEGEEK, http://www.wisegeek.com/what-are -tattoo-flash.htm (last visited Feb. 8, 2016). 5. Tattoo Waiver and Release Form, 727 TATTOO (Aug. 8, 2015), http:// 727tattoo.com/downloads/tattoo-release-form.pdf. 6. See, e.g., Stipulation of Dismissal with Prejudice, Reed v. Nike, Inc., No. http://open.mitchellhamline.edu/mhlr/vol42/iss1/8 2 Grassi: Copyrighting Tattoos: Artist vs. Client in the Battle of the (Wai 2 (Do Not Delete) 3/24/2016 7:52 PM 2016] COPYRIGHTING TATTOOS 45 definitive case law for tattoo artists to hang their hats on, there have been legal opinions that can pave the way for a new age in both copyright law and in the tattoo field.7 This could make getting a tattoo a more cautious decision for some people, especially celebrities and athletes. The main argument in most of the litigation surrounding tattoos is whether the tattoo design is copyrightable, and if so, what rights does the artist have in the tattoo if the waiver is silent and there was no separate agreement.8 Many agree that the design itself is indeed copyrightable. However, murkiness arises in determining whether a tattoo can be considered a work made for hire, in which case the client would retain all the rights, and whether any public use of the tattoo could fall under the fair use defense.9 The problem of determining whether a tattoo is copyrightable is compounded by the fact that U.S. copyright law is already convoluted. It is difficult to determine rights and liabilities in cases involving a medium, such as a painting that is explicitly covered by the law, but it gets even more difficult when the medium is not explicitly covered and the canvas that the artist is working on is a living human being. Whether or not tattoos are copyrightable or can expose celebrities to potential litigation, the exposure this issue is getting combined with the growing popularity of tattoos will certainly lead to a change in the process of getting a tattoo and signing the waiver. Smart artists will include a clause that grants them the copyright in perpetuity. Smart clients, especially celebrity clients, will bring their own waiver for the artist to sign, stating the tattoo is a work for hire and the client retains all the rights in the design. The next battle will be figuring out how to reconcile these forms to keep both the artist and the client happy. 05-CV-198 BR (D. Or. Oct. 19, 2005). 7. See generally Timothy Bradley, The Copyright Implications of Tattoos: Why Getting Inked Can Get You into Court, 29 ENT. & SPORTS LAW. 26 (2011) (describing whether tattoos are copyrightable through an analysis of case history). 8. See David M. Cummings, Creative Expression and the Human Canvas: An Examination of Tattoos as a Copyrightable Art Form, 2013 U. ILL. L. REV. 279, 280–81 (describing tattoo copyrights in relation to Whitmill’s copyright claim for the tattoo on Mike Tyson’s left eye as it was portrayed in the movie, The Hangover Part II). 9. See 17 U.S.C. § 107 (2012). Published by Mitchell Hamline Open Access, 2016 3 Mitchell Hamline Law Review, Vol. 42, Iss. 1 [2016], Art. 8 2 (Do Not Delete) 3/24/2016 7:52 PM 46 MITCHELL HAMLINE LAW REVIEW [Vol. 42:43 II. BRIEF HISTORY OF COPYRIGHT LAW IN NEW MEDIUMS U.S. copyright law was born when the Federal Constitution was ratified and included in Article I, Section 8, the clause that allowed Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”10 When the first federal copyright law was codified in 1790, the only things that were protected under the law were books, maps, and charts.11 Over the next 107 years, five different classes of works were added to the protected list of works, including prints, music, dramatic compositions, photographs, and works of art.12 In the 118 years after that, five more classes of protected works were added, including